Citation Nr: 0625918
Decision Date: 08/21/06 Archive Date: 08/31/06
DOCKET NO. 04-14 508 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Entitlement to an increased rating for tinnitus, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: John Stevens Berry, Attorney
ATTORNEY FOR THE BOARD
M.C. Peltzer, Counsel
INTRODUCTION
The veteran served on active duty from March 1942 to October
1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision issued by
the Regional Office (RO) of the Department of Veterans
Affairs (VA) located in Lincoln, Nebraska.
FINDING OF FACT
The veteran's service-connected tinnitus is assigned a 10
percent rating, the maximum rating authorized under
Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260
(2003, 2005); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir.
2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran requested an increased evaluation for tinnitus,
specifically a 10 percent evaluation for each ear. The RO
denied the veteran's request because under Diagnostic Code
(DC) 6260 there is no provision for assignment of a separate
10 percent evaluation for tinnitus of each ear. The veteran
appealed that decision to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S.
Court of Appeals for Veterans Claims (CAVC) held that the
pre-1999 and pre-June 13, 2003 versions of DC 6260 required
the assignment of dual ratings for bilateral tinnitus. VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus rating cases affected by the Smith decision. In
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit concluded that the CAVC erred in not
deferring to the VA's interpretation of its own regulations,
38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a
veteran to a single disability rating for tinnitus,
regardless whether the tinnitus is unilateral or bilateral.
Subsequently, the stay of adjudication of tinnitus rating
cases was lifted.
The veteran's service-connected bilateral tinnitus has been
assigned the maximum schedular rating available for tinnitus.
38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal
basis upon which to award separate schedular evaluations for
tinnitus in each ear, the veteran's appeal must be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of
the Veterans Claims Assistance Act have no effect on an
appeal where the law, and not the underlying facts or
development of the facts are dispositive in a matter.
Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
ORDER
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs